weed appointment as organizer valid ~ whether organizer entitled to be member - validation of membership by subsequent application - whether elected secretary/treasurer an employee of organization - whether temporary employee entitled to be member. Conciliation and Arbitration Act 1904, s. 170, s. 144, s. 159, 5s. 171C, s. 171E, s. 132, s. 140, s. 1718, 5. 4(1), 5. 4(7). Conciliation and Arbitration Regulations reg. 115. Public Service Arbitration Act 1920, s. 4, 5. 82. R. v. Gray; Ex parte Marsh (High Court of Australia, 17th October 1985, unreported.) Landeryou v. Taylor (1968) 15 F.L.R. 147 Rounsevell v. Mitchell (1967) 11 F.L.R. 414 Grove v. Rigby (1971) 19 F.L.R. 160 Holden v. Richardson (Federal Court of Australia, Keely J. 21st July 1978, unreported. ) Re Election for Office in Professional Radio Employees Institute of Australasia (1961) 3 F.L.R. 151 Egan v. Harradine (1975) 25 F.L.R. 336 re) Bl /iof¥ - cus CATCHWORDS Industrial law - registered organization - election - whether candidates required to be members of organization - whether -2- R. v. Moore; Ex parte Australian Workers' Union (1976) 11 A.L.R. R. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 C.L.R. 470 Roughan v. Coulson (1982) 3 I.R. 393 Re Brzycki; Ex parte Royal Australian Nurses Federation South Australian Branch (1984) 2 F.C.R. 546. EILEEN MARY RANSLEY ov. AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISION OFFICERS) TASMANIAN BRANCH IN THE MATTER OF AN APPLICATION BY R.W. RIEP FOR AN INQUIRY INTO ELECTIONS FOR OFFICES IN THE A.P.S.A. (FOURTH DIVISION OFFICERS) TASMANIAN BRANCH IN THE MATTER OF AN APPLICATION BY L. SMITH FOR AN INQUIRY INTO AN ELECTION FOR OFFICE IN THE A.P.S.A. (FOURTH DIVISION OFFICERS) TASMANIAN BRANCH IN THE MATTER OF AN APPLICATION BY C.A. FITTON FOR AN ORDER IN RESPECT OF CONSEQUENCES OF ALLEGED INVALIDITY IN AN APPOINTMENT AS_ORGANIZER, A.P.S. (FOURTH DIVISION OFFICERS) TASMANIAN BRANCH GRAY J. TASMANIA 6TH DECEMBER 1985 IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTPICT REGISTRY INDUSTRIAL DIVISION . T2 No. T3 No. T4 we ewe led0 RETWEEN: AND: EILEEN MARY RANSLEY of of ot 5 of 19851985 Applicant AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISION OFFICERS) TASMANIAN BRANCH Respondent IN THE MATTER of an application by ROBERT WALTER RIEP for an inaquirv into elections for offices in the AUSTRALIAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISION OFFICERS! TASMANIAN BRANCH IN THE MATTER of an application by LEE SMITH for an inquiry concernina an election for an office in the AUSTRALTAN PUBLIC SERVICE ASSOCIATION (FOURTH DIVISTON OFFICERS) TASMANIAN BRANCH IN THE MATTER of an application by CHRISTINE ANNE FITTON for an order in respect of consequences of alleged invalidity in an appointment as organizer, AUSTRALIAN PUBLIC SERVICE (FOURTH DIVISION OFFICERS) TASMANIAN BRANCH JUDGE: GRAY J. DATE: 6TH DECEMBER 1985 REASONS FOR JUDGMENT These matters arise out of an election for the office of branch secretarv/treasurer in the Tasmanian Branch of the Australian Public Service Association (Fourth Division Officers) ("the Association"). The Association 1s an orqanization of employees, registered pursuant to the Conciliation and Arbitration Act 1904 '"the Act"). The rules of the Association required the conduct of an election in August 1985 for the position of secretary/treasurer of the Tasmanian Branch. As a result of a request pursuant to s. 170 of the Act, the election was conducted by Bruce Charles Taylor, an officer of the Australian Electoral Commission. The period for lodaing nominations opened on 28th August, and closed on 17th September. Three nominations were received, from Lee Smith. Eileen Ransley and Christine Anne Fitton. The returning officer rejected the nomination of Ms. Ransley. but accepted those of Mr. Smith and Ms. Fitton. A ballot was conducted between those two candidates, on and between lst and 28th October. The returning officer issued 741 ballot papers in the first instance, and subsequently -32- rssued a further 80. The result was 260 votes for Ms. Fitton and 89 for Mr. Smith. The result of the ballot has not vet been declared formally. By way of interim order, the Court restrained the returning officer from taking any step in the conduct of the election, other than the counting of votes. The declaration would normally have occurred at the annual general meeting of the branch, on 12th November. On 8th October 1985. Ms. Ransley made application in matter number T2 of 1985. She seeks a declaration. pursuant to s. 144 of the Act, that she 1s entitled to be admitted as a member of the Association. On 10th October 1985, Robert Walter Riep made application to the Industrial Registrar, pursuant tos. 159 of the Act, seeking an inquiry into the election. On 14th October, the Industrial Registrar referred that application to the Court. and an inquiry was thereby deemed to have commenced. The inquiry 1s matter number T3 of 1985, The irregularity alleged in it is the reiection of Ms. Ransley's nomination. On 16th October 1985, Mr. Smith made application to the Industrial Registrar for the conduct of an inquiry into the election. That application was referred to the Court by the Industrial Registrar on 18th October 1985, and became matter number T4 of 1985. The irreqularity alleged in it originally was the wrongful acceptance by the returning officer of the nomination of Ms. Faitton; it was alleged that Ms. Fitton was iuneliqible to be a member of the ordqanization., and was not a -4- member at the time when her nomination was lodded. The allegations made in matter number T4 of 1985 prompted the filing by Ms. Fitton of the application in matter number T6 of 1985. That application is made pursuant to s. 171C of the Act; 1t seeks a determination as to whether an invalidity occurred in the appointment of Ms. Fitton as an orqanizer of the Tasmanian Branch of the Association. If such an invalidity is found to have occurred. the application seeks orders curina the effect of any such invalidity. In addition to making that application, Ms. Fitton filed in matter number T4 of 1985 points of contention, which alleged that Mr. Smith had never been a member of the Association, and therefore was not eligible to be a candidate for the position of secretary/treasurer in the election. The final relevant application was matter number T7 of 1985. That was an application by Mr. Smith, pursuant to s. I171E of the Act. seeking a declaration of his entitlement to be admitted as a member of the Association. and to be treated as having been a member from 19th November 1984. On 26th November 1985, the hearing beqan of the matters numbered T4. T6 and T7 of 1985. These were heard together bv consent. The hearing proceeded for two full davs. At the beginning of the third day, counsel for Mr. Smith indicated that. subject to the completion of certain matters, his instructions and those of his instructing solicitor had been withdrawn. On behalf of Mr. Smith. counsel sought leave to discontinue matter - 5 - number T7 of 19985. Such leave was aranted. The other parties then considered their positions. An application was then made by counsel for each of the returning officer, the Association, Ms. Ransley. Ms. Fitton and the branch president of the Tasmanian Branch of the Association for the matters numbered T2 and T3 of 1985 to be called on, and for them to be heard together with the matters mumbered T4 and T6 of 1985. It was recoagnized that the allegation had been made that Mr. Smith never had been a member of the Assocration. If that allegation were sustained, Mr. Smith was not capable of initiating an inquiry into the election, because he did not fall within the cateqories of persons referred to in s. 159(1) of the Act. To prevent difficulties, all parties agreed that all allegations raised in matter number T4 of 1985 should be treated as having been raised in matter number T3 of 1985. The documents filed in the former matter were treated as having been filed in the latter. by direction of the Court. Mr. Smith indicated that he wished to take no further part in the proceedings, including the cross-examination of witnesses, but indicated his preparedness to assist the Court by giving any further evidence, if the Court so required. He did in fact cross-examine one subsequent witness. The result was a composite proceeding in which were raised the issues of the eligibility of each of the three candidates to nominate for the office of secretary/treasurer. Other alleaations of irregularities were also made, which were not mentioned in any of the original applications. These were allegations that Mr. Smith and Ms. Fitton respectively had made improper use of the funds and resources of the Association, and - 6 ~ their positions within the branch, in campaigning for their election. At the outset, there arises the question whether the rules of the Association disclose any requirement that a candidate for the office of branch secretary/treasurer be a member of the Association. If there is no such requirement. no question arises as to the eligibilitv of any candidate to nominate. The rules do not state such a requirement expressly. By contrast, rule 20(2)(b) does require that every nominee for the offices of federal president, deputy federal president, federal secretaryv/treasurer. and assistant federal secretary "be a financial member of the Association". Rule 47, which 1s headed "Eligibility to Nominate for Office". provides: "47. A member of the Association who has reached the age of 65 years shall be ineligible to be nominated for election for any office in the Association." In rule 55(2)(a), it is provided that "A member who is unfinancial is ineligible for nomination to any position as officer...". This rule relates to branch elections, including those for branch secretary/treasurer. It might be thought that the negative wording of rule 55(2) (a) had been chosen deliberately, to achieve a result different from that achieved by rule 20(2)(b). Certainly, on a literal construction, non-members appear not to be excluded from branch offices. Such a construction would lead to strange results. A member who is unfinancial could not seek branch office, but a non-member who owes no financial obligation to the Association at all, could. A member over sixty-five vears of age would be excluded by rule 47, - 7 ~ but a non-member of anv age could stand. Rules 47 and 55:2)(a) assume that the field of potential candidates is limited to members; they are not intended to leave the gate open for outsiders. The passage I have quoted from rule 55(2)(a) is no more than a clumsy attempt to express the positive requirement of rule 20(2)(b), in relation to branch officers. Given the nature of the Association, and the context of its rules, 1t is implicit in those rules that all candidates for branch offices are required to be members. This was common ground among all parties who appeared in the proceedings. The eliqibility of each of the candidates depended uron whether he or she had become a member of the Association. Issues were raised in each case as to eligibility for membershivo at the time when the oarticular candidate joined or purported to join. and as to the process of joining. Rule 5 of the rules of the Association specifies the classes of persons eligible to belong to the Association. Most of them are Commonwealth public servants, or employees of Commonwealth ainstrumentalities, in various specified classifications. Rule 5(5) provides as follows: "(5) Together with any Industrial Officer or Research Officer or other employee of the Association appointed by the Federal Council or any Branch Committee of Management." Rule 7 of the rules of the Association is in the following terms: "7, An applicant for admission to membership of the Association shall apply to the appropriate Branch Secretary on the prescribed form (see Appendix A) and upon the Branch Secretary or his delegate being satisfied as to his eliqibility and upon the payment of the prescribed subscription or evidence - 8 - that the prescribed subscription will be paid, he shall be enrolled as a member." Originally matter number T4 of 1985 was based primarily upon the allegation that Ms. Fitton had never been "appointed" by the branch committee of management, within the meaning of rule 5(5). and that her purported application for membership of the Association was therefore void. When the matter came on for hearing, counsel for Mr. Smith abandoned this ground. Counsel for the other parties agreed that no issue would be made of this ground. Counsel for Mr. Smith directed attention instead to the validity of rule 5(5). His argument was that, to the extent to which rule 5(5) permits to be members of the Association persons who are not "officers", within the meaning of that word as used in s. 132(1) of the Act, the rule offends against the »rovisions of the Act. It makes the Association an association of a kind different from that permitted to become registered pursuant to s. 132(1), and constitutes a breach of the conditions with which an organization must comply, pursuant to s. 132(2) of the Act and regulation 115(1)(a) and (2) of the Conciliation and Arbitration Regulations. The rule is therefore 1n contravention of s. 140(1)(a) of the Act. unless read down, so as to exclude from its ambit persons who are not "officers". It was arqued that an organizer performing duties of the kinds which Ms. Fitton was obliged to perform was not an "officer", and could not become a member of the Association. It is convenient to set out the history of the membership of each of the three candidates. - 9 - In 1984, the Tasmanian Branch of the Association was in a poor state. Its membership was not much over 500. and many members were not financial. The then branch secretary/treasurer, Mr. Wayne Spaulding, was 111. The branch president, Mr. Tony Lowe, set out to try to rescue the branch. A newspaper advertisement was published, seeking an organizer. One of the applicants was Mr. Smith. At the time, Mr. Smith was unemploved. and actively involved in an association known as the Unemployed Workers' Union. He was interviewed. and reqarded as the only acceptable candidate. Discussions took place as to the manner in which funds might be provided for his employment as an orqanizer. One proposal was that Mr. Smith should accept emplovment as an office manager. at the salary rate applicable to that job. This he declined to do. Another suggestion was that he be engaged as a recruiting officer, and paid a fee of $20.00 per new member enrolled through his efforts. Mr. Lowe decided that the best course was to seek assistance from the Association's Federal Council. He attended a meeting of the Federal Council in November 1984. By this time. Mr. Smith was already assisting in the office of the Association, on an unpaid basis. Mr. Lowe proposed to the Federal Council that a subsidy be provided out of federal funds. to enable the employment of an organizer in the Tasmanian Branch. The Federal Council agreed to provide such a subsidy for six months. On his return to Hobart. on 17th November 1984. Mr. Lowe engaged Mr. Smith as an organizer. Thereafter. Mr. Smith made an application for membership of the Association. The form on which he made his application is in evidence. It bears the date "19/11/84", but this date has - 190 - Clearly been written over another date, which 15 no longer legible. The evidence is that each new application for membership is allocated a serial number. which is hand written in the top right hand corner of the card. The particular card bears the serial number 63449. The cards bearing serial numbers 63447 and 63448 are each dated 23rd January 1985. The card bearing serial number 63450 is dated 24th January 1985. The last-mentioned card is the application of a Ms. Bourn. Mr. Lowe's evidence is that Mr. Smith and Ms. Bourn (who was then the office manager of the Branch) executed their applications for membership on the same date. He thought that this was in the month of December 1984. A further difficulty is provided by the fact that the serial numbers 63449 and 63450 appear to have been written by different persons. Mr. Lowe's explanation for this is that one of the numbers may have been written by Ms. Suzan Turfrey, who was then employed as assistant office manager. Mr. Smith's name subsequently appeared ona computer print-out of names of members of the Tasmanian Branch. It was on 12th February 1985 that his name was entered in the computer records, which are kept in the federal office of the Association in Melbourne. The computer print-out records Mr. Smith's membership as having dated from 19th November 1984. It 1s unnecessary for me to make a detailed finding as to the date on which Mr. Smith's membership apolication was made. The only relevance of the precise date 1s as to the nature of Mr. Smith's duties at the time when he made his application. On the balance of probabilities. I find that the application was not made on 19th November 1984. The most likely date is 23rd or 24th - ll - January 1985, but even if the application was made in December 1984, 1t cannot affect the result. As a result of the resignation of Mr. Spaulding from the office of branch secretary/treasurer, an election to fill a casual vacancy in that office was held. At the close of nominations, the only nomination was that of Mr. Smith. On 3rd April 1985, he was declared elected as branch secretary/treasurer. In July 1985, a newspaper advertisement was published, seeking an industrial officer. One of the applicants was Ms. Fitton. She had had some considerable experience in New South Wales, as an organizer with the Administrative and Clerical Officers Association, Australian Public Service, and in conducting courses for the Trade Union Training Authority. She was interviewed. first by Mr. Smith alone, and subsequently, on 7th August 1985, by a sub-committee, consisting of Mr. Lowe. Mr. Smith and Ms. Melinda Tonks. a member of the committee of Management. On the date of that interview, Ms. Fitton was offered the 30b of organizer with the branch. She was introduced to the remaining members of the committee of management, who had arrived to conduct a meeting, as the new organizer. She began work on 13th August 1985. She determined to become a member of the Association. Even before her employment commenced. she attended at the office of the Association on 9th August. and paid to Ms. Turfrey, who had become the office manager, a _ sum equivalent to one quarter's membership contributions for the Association. At that time, because of the pressure of business, Ms. Turfrey did not qive Ms. Fitton an application form for membership. Such a form was filled out by Ms. Fitton. and qiven to Ms. Turfrey. on 15th August 1985. A computer print-out from the Federal office, dated 20th August 1985, shows an entry with the surname "Christine" and the first name "A", The membership number in that entry is the same as the serial number entered on Ms. Fitton's application card, and the starting date for membership is qiven as 15th August 1985. The entry plainly relates to Ms. Fitton, an error having been made by using her first qiven name as a surname. Ms. Ransley's work history was as follows. From 1957, for approximately three years. she worked in the Attorney-General's Department of the Commonwealth of Australia. as a typist in the Official Receiver's Office. She was then a member of the Association. After some vears out of the paid workforce, in 1976 Ms. Ransley resumed working. In 1981 she obtained a job in the office of the Tasmanian Branch of the Administrative and Clerical Officers Association, Australian Public Service ("the A.C.0.A."). She seems to have had an unusual working relationship with the A.C.0.A., which can best be described as both part time and casual. Her normal working hours were thirty per week, worked on five days of six hours, although she described in her evidence these hours as "nominal". If there was not a lot of work in the A.C.0.A. office. she did not work at all. In March 1984, she registered with Templine, a temporary employment service, operated by the Commonwealth Employment Service. Through this service, she obtained a couple of short periods of temporary employment, including one of ten days with -13- the Australian Public Service Board ain August 1984. On Sth September 1985, Ms. Ransley was offered a one week temporary engagement with the Department of Defence, as a typist. She announced to the Tasmanian Branch Secretary of the A.C.0O.A., Mr. Bolwell, that she intended to resian her employment with the A.C.0.A., and to take up this temporary employment. It appears that one means which Ms. Ransley used of endeavouring to improve her working conditions with the A.C.0.A. was periodically to leave, or to threaten to leave, in the hope that she would be offered better conditions. On 9th September 1985, Ms. Ransley began her employment with the Department of Defence. During her lunch break on that day, she attended at the office of the Association, filled out an application for membership, and paid to Ms. Turfrey a sufficient amount of money to cover one quarter's subscription for the Association. Two davs later, on llth September, her nomination for the position of branch secretary/treasurer was lodged with the returning officer. The subsequent history of her membership application is set out below. The eligibility for membership of each of Ms. Fitton and Mr. Smith depended upon the employment of each of them as an organizer. The nature of the duties each was required to undertake was the subject of a considerable amount of evidence. With some minor variations, each appears to have undertaken substantially the same duties. These duties included attempting to recruit new members. informing members about the policies of the Association and the benefits it offered them, attending - 14 - meetings with management personnel in the departments and unstrumentalities where members were employed, and negotiating with management. particularly with respect to the grievances of undividual members. Because of the position of the Branch at the time when Mr. Smith was first engaged as an organizer, the emphasis was very much on recruiting members, and on making existing members aware that the Branch was undergoing a change of direction, and would be more active on their behalf. Ms. Fitton was, to some extent, caught up in the problems arising from the prevalence of repetition strain injury; she was required to assess ergonomic furniture, which departmental management proposed to install, and to assess whether it complied with Association policy as to such furniture. Mr. Smith did some research, prepared submissions, and engaged in advocacy, although he may not have had authority to act as an advocate for the Association because of the way in which its rules require industrial disputes to be handled. Ms. Fitton was charged with the editorship of newsletters for the membership, although only one of these was produced during the relevant period, and Ms. Fitton actually wrote only a minority of the material which appeared in it. One of the matters which was discussed at Ms. Fitton's interview was that she could use her experience with the Trade Union Training Authority to conduct courses for delegates and members. No such course was actually conducted, but I am satisifed that, in the normal course of events, Ms. Fitton would have conducted such courses. Mr. Smith attended departmental induction courses for the purpose of recruiting new members; Ms. Fitton did not actually attend any such induction course. She attended meetings of consultative councils. set up within - 15 - departments pursuant to the volicy of industrial democracy. Each of Mr. Smith and Ms. Fitton sianed his or her own correspondence with respect to some matters. There was one incident where Mr. Smith endeavoured to prevent Ms. Fitton from signing correspondence. To some extent, as an organizer. each was under the control of the secretary/treasurer. Mr. Smith was subject to the direction of Mr. Lowe, who acted as branch secretary/treasurer after Mr. Spaulding's resiaqnation. Ms. Fitton was subject to direction by Mr. Smith. This did not mean that each had to seek guidance with respect to every act. Indeed, in representing the Association, many decisions were required to be made, and were made by an organizer. The position involved a good deal of responsibility for the conduct of the affairs of the Association, on a day to day basis. It was not at all a policy-making position, but in carrving out policy. there was room for initiative. It must be remembered that the Branch was quite small, and did not support a large staff. For the most part, there was the secretary/treasurer. one organizer. an office manager and an assistant office manager or general office worker. Duties were shared between the secretarv/treasurer, the organizer and the office manager, even to the extent that each of them had some departments in which to carry out organizing duties. To some extent. whatever needed doing was done by whichever of the three was available to do it. In a way. the office manager was under the direction of the organizer, as well as of the secretary/treasurer, in the sense that she performed the tasks she was requested to perform by the organizer. It 15 also important to examine, in the light of rule 7 - 16 - of the Association's rules, the procedures which were adopted for processing applications for membership. During the office managership of Ms. Bourn, and subsequently of Ms. Turfrey, applications for membership were handled by the office manager. The office manager would receive the application card, and would write a serial number on the top right hand corner of the card. In the ordinary case, the application card would be accompanied by an authority, addressed to the relevant department. to deduct from the pay of the applicant a fortnightly amount towards the membership subscription. In occasional cases, the applicant would pay one quarter's subscription, together with the application. The office manager would check the details on the card as to the applicant's employer and classification, for the purpose of determining whether the applicant was eligible to belong to the Association. Usually, this presented no problems, as the applicants were invariably fourth division officers of the Australian Public Service, or equivalent officers or employees of the appropriate Commonwealth instrumentalities. The details on the application form were then entered ona white sheet, which was described as a "pro forma". In the case of a payroll deduction authority, the authority was completed and forwarded to the paying officer of the appropriate department or instrumentality. Each fortnight, departments and instrumentalities forwarded to the Branch office a computerized sheet, indicating the names of officers and employees from whose pay the membership subscriptions had been deducted, and the amounts deducted. When an applicant's name came up on one of these sheets, or, in the case of an applicant who had paid a subscription, when a sufficient amount of material had been - 17 - accumulated to send to the Federal office of the Association in Melbourne. the pro formas were forwarded to that office. The names and details were then entered in the Association's computer, and requiar print-outs, showing insertions. amendments and deletions to and from the membership list were sent to the Branch. Finally, the branch secretary was asked to siqna red card, evidencina the membership of the particular member, and the red card was sent to the member. Iam satisfied that. in examining the details on the application forms. for the purpose of determining whether each applicant was eligible to belong to the Association, the office manager was acting as the delegate of the secretary/treasurer for the time being, within the meaning of rule 7 of the rules of the Association. There is some evidence of express delegation, by Mr. Lowe, as acting secretary/treasurer, to Ms. Bourn to perform the task, and Mr. Smith, after his election ag secretary/treasurer in April 1985, allowed Ms. Turfrey to continue that practice. In my view, express delegation is unnecessary to satisfy rule 7. Mr. Smith's case was that any délegqation by him to Ms. Turfrey no longer existed by the time the applications of Ms. Fitton and Ms. Ransley were received. Mr. Smith was absent from the Branch office during the week beginning 9th September 1985, attending a meetina of the congress of the Australian Council of Trade Unions in Sydney. The nominations of Ms. Ransley and Ms. Fitton for the position of secretary/treasurer were lodged during that week, on llth and 13th September respectively. On Monday - 18 - 16th September, when Mr. Smith returned to the Branch office, he was aware that these nominations had been lodged. He examined the applications ror membership of each of Ms. Ransley and Ms. Fitton, and purported to determine that each of them was not eligibie for membership. His basis for this determination, in the case of Ms. Ransley, was that she was not. on 16th September, emploved in any of the classifications or by any of the emplovers referred to in rule 5 of the Association's rules. In the case of Ms. Fitton. Mr. Smith purported to determine that she had never been "appointed" by the branch committee of management, within the meaning of rule 5(5). Thereafter, Mr. Smith advised each of Ms. Ransley and Ms. Fitton by letter of the rejection of their membership applications. He aiso advised the returning officer that each of them was ineligible to nominate. Ms. Turfrey swore that, on 16th September. Mr. Smith "went crook" at her for receiving Ms. Ransley's application. He reauired Ms. Turfrey to make a statutory declaration. which was hand written by him. and signed by her in front of a justice of the peace at the Australian Legal Aid office. approximately a minute's walk from the Branch office. This statutory declaration was in the following terms: "I, Sue Turfrey of 3 Ewins Court Glenorchy, in Tasmania do hereby solemnly and sincerely declare that on lst August 1985, Lee Smith the Secretary of APSA instructed me that any new applications for membership to the APSA must be made to the Secretary who would determine their eligibility for enrollment£sicl." In the witness box, Mr. Smith swore that he had given a direction in these terms to Ms. Turfrev, but denied that it had been given ~ 19 - on ist Auqust. He claimed to have given such a direction in mid-Julv. Ms. Turfrey also swore that a direction was given bv Mr. Smith to her to show him all membership applications before they were processed. She also denied that this direction was qiven on ist August, and swore that it was given during the first week 1n September, the week immediately preceding Mr. Smith's trip to Sydney. She was unable to qive a satisfactory explanation as to the inclusion of the date 1st August in the statutory declaration. Mr. Smith's evidence included a number of statements inconsistent with revocation of the delegation in mid-July. At one stage he contended that no delegation had ever occurred. At another, he put the date of the revocation as some time in August. Clearly, on 16th September, and thereafter, it suited Mr. Smith to claim that revocation had occurred. Further, it suited him to claim that it had occurred at a time prior to Ms. Fitton's application for membership, as well as that of Ms. Ransley. If neither of those persons was a member, Mr. Smith would have regarded himself as the only candidate in the election. Ms. Turfrev's position was somewhat different from that of Mr. Smith. She claimed to have been a supporter of Mr. Smith on 16th September. Subsequently, according to her evidence, she changed her mind, and threw her support behind Ms. Fitton. By the time she came to give evidence, it was apparent to her that to insist on a revocation of her delegated authority on lst August 1985 would have been to invalidate Ms. Fitton's membership, as well as that of Ms. Ransley. She no longer desired this end. She therefore had a motive to put the date of - 20 - the revocation at a time between the two relevant applications for membership. In fact, as the evidence indicates. Ms. Turfrey dealt with Ms. Ransley s application in precisely the same way as she would have dealt with it 1f no revocation had taken place; she checked the facts stated in the application, enquired of Ms. Ransley about her employment in the Australian Public Service. accepted an amount of money equal to one quarter's subscription, and transferred the details on the application card toa pro forma. If she had really been told by Mr. Smith not to process any membership applications without placing them before him, it 1s extremely unlikely that she would have performed all of these tasks in exactly the same way as she had prior to that date. She would have been more likely to have told Ms. Ransley that she could do nothing about her membership application until Mr. Smith returned from Sydney. Not only was Ms. Turfrev's approach to membership applications the same in September as it had been earlier, but the evidence discloses that Mr. Smith did not inspect any membership application. for the purpose of determining whether an applicant was eligible for membership, until 16th September. On that date. Mr. Smith was determined to sabotage the nominations of both Ms. Fitton and Ms. Ransleyv. and Ms. Turfrey was prepared to assist him. There was some evidence that Mr. Smith threatened Ms. Turfrev that she would be dismissed from her job if she did not assist. This may have contributed to her willingness to sign the statutory declaration. I do not accept her evidence that she did not notice the date in the statutory declaration. I am of the view that she was prepared to make a declaration in that form on 16th September, but afterwards regretted this. as it affected Ms. Fitton adversely. For these - 21 - reasons, I do not accept that Mr. Smith at any time revoked his delegation to Ms. Turfrey of the function of being satisfied as to the eligibility of applicants for membership. Counsel for the branch president suqqested that the evidence disclosed a chain of invalidity, which began at the time when Mr. Lowe purported to occupy the position of branch secretary/treasurer after Mr. Spaulding's resignation. Rule 56(2) of the rules of the Association permitted a branch qeneral meeting to fill a casual vacancy 1n an office by appointment, for @ period not exceeding ninety davs. After Mr. Spauldina's resiaqnation took effect, in November 1984, the branch committee of management purported to appoint Mr. Lowe as branch secretary/treasurer, pursuant to this rule. Not only did the committee of management not have power to make such an appointment. but there were, at the time, insufficient persons filling the positions which made up the branch committee of management for a quorum to be formed, even if all such persons attended a purported meeting. Mr. Lowe's appointment was, therefore. invalid. One of the acts which Mr. Lowe did as branch secretary/treasurer was to delegate to Ms. Bourn, the then office manager, the task of determining the eligibility of applicants for membership. It was argued that this delegation was invalid, as it flowed from Mr. Lowe's invalid appointment as branch secretary/treasurer. From this. it was said, stemmed an invalidity in Mr. Smith's application for membership, as there was no person who could be satisfied as to his eligibility pursuant to rule 7 of the rules of the Association. If Mr. Smith did not become a member, his nomination for the position of - 22 - branch secretarv/treasurer., which resulted in his election to that position on 3rd April 1985. was similarly invalid. Accordingly. he could not make any valid delegation pursuant to rule 7 to Ms. Turfrey, or anyone else, so that no person existed who could perform the duties required by rule 7 in relation to any subsequent application for membership. including those of Ms. Fitton and Ms. Ransley. The short answer to this reasoning lies un s. 171B of the Act. Under that section, all acts done in good faith by a person purporting to hold an office are valid, notwithstanding any invalidity that may afterwards be discovered in the election or appointment of such person. By virture of sub-s. (3)(a), the onus of proving lack of qood faith lies on anyone who alleges it. There is no evidence that Mr. Lowe or Mr. Smith acted otherwise than in good faith in makina their delegations. By sub-s. (3)(c). knowledge of facts from which an invalidity arises 1s not of itself to be treated as knowledge that the invalidity exists. It can therefore truly be said that any invaliditv in Mr. Lowe's appointment or in Mr. Smith's election, as branch secretary/treasurer Was afterwards discovered. For these reasons, acts performed by them in that office are to be treated as valid. This validation operates to break the chain of invalidity at its first link, and to render valid all the matters which would otherwise have been invalidities flowing from the defect in Mr. Lowe's appointment. It 1S convenient to set out the relevant parts of s. 132 of the Act: "132(1) Any of the following associations or persons may, on compliance with the prescribed conditions, be registered 1n the manner prescribed as an organization: {b) any association the members of which 1nclude not less than one hundred employees in or in comnection with any industry and the other members, if any, of which are- (i) officers of the association: or (11) persons who are employees who are qualified to be employed in or in connection with that industry." The prescription or the terms and conditions contemplated bv sub-s. (2) is found in reg. 115 of the Conciliation and Arbitration Requlations. So far as relevant, this requlation is in the following terms: "(1) The following conditions are prescribed conditions to be complied with by an association applying for registration. namely:- (a) the association shall be a voluntary and bona fide association of a kind referred to in section 132 of the Act: {2) The conditions specified in the last preceding sub-requlation apply in relation to organizations in like manner as they apply in relation to an association applying for reqistration as an organization." The relevant provisions of s. 140(1) of the Act are: "140(1) The rules of an organization- (a) shall not be contrary to, or fail to make a provision required by. a provision of this Act, the requlations or an award or otherwise be contrary to a law." Counsel for Ms. Fitton endeavoured to argue that an allegation that a rule was in contravention of s. 140 of the Act could not be raised in the context of an inquiry pursuant to Part IX of the Act. He recoanized that this araument ran against the authority of the Full Court in Leveridge v. Shop Distributive and Allied Employees' Association (1977) 31 F.L.R. 385, but contended that the judgment of the High Court of Australia in R. v. Gray; Ex parte Marsh (17th October 1985, not vet reported) has so narrowed the view which could properly be taken of an "irregularity" for the purposes of Part IX of the Act, that it was no longer permissible to challenge in an inquiry the validity of a rule upon which some past act was done. I do not accept that the High Court has so narrowed the concept of tirreqularity. The past invalidity of a rule, on the basis of which was performed some act upon which the validity of an election depends, is perfectly capable of amounting to the sort of departure from rule or principle referred to in the judgment of the Chief Justice at page 20. Another analysis is. however, possible in the present case. It is alleged that, upon the true construction of rule 5(5), a candidate or candidates could not have been eligible for membership of the Association. In determining the true construction of this rule, the effect upon it of s. 140 must be taken into account. If. when read so as to make the candidates eligible, rule 5(5) would contravene s. 140, it may be permissible to read down the rule, so as to preserve it from such contravention. When the rule is read down in such a way, it may be construed as excluding a candidate or candidates from membership. The acceptance of a nomination from an ineligible candidate would amount to a breach of the rules of the Association. The statutory extended definition of "irreqularity" in s. 4(1) of the Act specificallv refers to "a breach of the rules of an organization". In assessing the strenath of the arqument which was outlined in opening by counsel on behalf of Mr. Smith. it is leaqitimate to enquire whether the categories of members referred to in s. 132(1)(b) of the Act are exhaustive. There 1s a lond line of authority to the effect that a mamber of an orqanization who, by reason of a change 1n his or her occupation, ceases to fall within the categories of persons eligible to belong to the organization, does not thereby automatically cease to be a member, unless the rules of the particular orqanization so provide. See Cameron v. Duncan (1965) 8 F.L.R. 148, Troja_ v. Australasian Meat Industry Employees' Union (1978) 46 F.L.R. 340, at pages 346-348, Sims v. Australasian Institute of Marine and Power Engineers (1980) Industrial Arbitration Service. Current Review, 575. Re Federated Clerks Union of Australia (1982) 1 I.R. 217, at page 218. Prichard v. Krantz (Federal Court of Australia, Smithers, Northrop and Keely JJ., 21st October 1983, unreported), Prichard v. Krantz (1983) 6 1I1.R. 271. at page 273, Turner v. Australasian Coal and Shale Emplovees Federation (1984) 55 A.L.R. 635, at pages 650-651, Re Application by Prichard for an Inauirv into an Election in the South Australian Branch of the Federated Clerks Union of Australia (Federal Court of Australia, Gray J., 2nd April 1985, unreported) at pages 13-14, and Bailev v. Krantz (Federal Court of Australia. Gray J., 16th July 1985) at page 99. This position seems to be recognized by s. 144(2) of the Act, which provides that the provisions of sub-s. (1) of that section do not permit a person "to remain a member if he ceases -~- 26 - to be so included Cin a cateqory of persons who are eligible for membership of the organization] and the rules do not permit him to remain a member." It has never been suggested in any of the cases to which I have referred that the absence of a rule automatically terminating the membership of a person who ceases to be eligible leads to the organization concerned becoming an association which is not of a kind referred to in s. 132 of the Act. It may be that persons who cease to be eligible, but remain emplovees, would be regarded as falling within s. 132(1)(b)(ii), as persons who are employees who are qualified to be emploved in Or in connection with the relevant industry. The cases, however, have not distinguished between members who are still employees but have become ineligible, and members who have ceased to be employees. This line of authority, therefore, must give rise to some doubt whether the words "if any" ins. 132(1)(b) have the effect of makina the categories of membership in that provision the only categories which an organization can have legitimately. For the purposes of these proceedings, however, I am prepared to assume that s. 132(1)(b) limits the categories of membership which the Association may have to employees who are employed in or in connection with the relevant industry, officers of the Association. and employees who are qualified to be employed in or in connection with the relevant industrv. On this basis. three possible categories were suggested, into which it was said that Mr. Smith and Ms. Fitton, as organizers. could fit. It was suggested by counsel that organizers could be officers, employees who were qualified to be employed in or in connection with the industry specified in the rules of the Association, or - 27 - employees who were employed in connection with, although not in, that industry. With respect to the meaning of the word "officers"" in s. 132 of the Act, 1t was accepted that the test applied by the Commonwealth Industrial Court in Peqq v. Tavlor (1959) 1 F.L.R. 274, at page 282, and in Landeryou v. Taylor (1968) 15 F.L.R. 147, at page 157 was to be applied. This test was that "the position must carry with it some administrative or executive duties or some substantial degree of responsibility." Two important points emerge from Landervou's case. The first is that a person may be an officer within the meaning of s. 132 without having been elected to the position he or she holds. The second is that, in determining whether a person 1s an officer for that purpose, the definition of "office" in s. 4(1) of the Act is not decisive; that definition was inserted in the Act subsequently to the use of the word "officer" in what is now s. 132. In applying the test used in Landeryou's case. little assistance is derived from previous decided cases. Those cases only demonstrate the application of the test to their particular facts. It is to be noted, however, that the actual result of Landeryou's case was a decision that a person holding the position of "dues collector", to which he had not been elected, and which appeared to involve lesser responsibilities than those undertaken by either Mr. Smith or Ms. Fitton as organizers, was to be regarded as an officer for the purposes of s. 132. Reference was also made to Rounsevell _v. Mitchell (1967) il F.L.R. 414, iain which it was held that a person occupying a - 28 - position described as "industrial officer" was not eligible to be a member of an organization. Insofar as the court in that case discussed s. 132. the emphasis was on the definition of "officer" in the rules of the orqanization concerned. See pages 430-431. That definition was confined to elected officers. The rules of that organization did not, therefore, purport to make the industrial officer eligible for membership. It us true that rules 4(i) and 53(2) of the rules of the Association set out who shall be the federal officers and the branch officers respectively. and that all the persons referred to are elected officers. Rule 5(5). however, does not refer to officers generally, but to two specific types of officers, who were not required by the rules to be elected. and other employees of the Association. The question is whether all or some of such employees are officers within the meaning of s. 132. Grove v. Rigby (1971) 19 F.L.R. 160 is also easily distinguished. [In that case, the position of "public relations officer" was set up by the rules as a purely formal position, apparently desiqned to enable persons who were members of Parliament, or who held other civic or public offices, to become members of the organization concerned. It was clear that such persons were not, in any real sense, officers of the organization. Reference should also be made to Holden v. Richardson (Federal Court of Australia, Keelv J., 2ist July 1978, unreported). In that case, the test applied in Landervyou''s case was accepted as the appropriate test. Its application to a research officer in the particular organization resulted in his not being regarded as an officer for the purposes of s. 132. Keely J., at page 6, appeared to express some doubt as to whether the test had been correctly applied in lLanderyou's - 29 - case. I do not share that doubt. It seems to me to be appropriate that the word ""orficer" in s. 132 should be anterpreted broadly, rather than narrowly, so that organizations may if they choose to do so, offer to their employees in positions of responsibility the benefits of membership. Note should also be taken of O'Donoghue v. Amalgamated Society of Carpenters and Joiners (1979) 41 F.L.R. 197, in which an elected organizer was held to be the holder of an "office" within the definition of "office" in s. 4(1) of the Act. In my view. each of Mr. Smith and Ms. Fitton. when acting as an organizer. had sufficient responsibilitv to be regarded as an officer for the purposes of s. 132. In the context of a small branch, the operation of which involved shared duties, it is not difficult to find such a level of responsibility. It must be remembered that an examination needs to be made of the overall duties of a position. The fact that, a particular occupant was only in the position for a short time and consequently. not all the duties envisaged were actually peformed, does not mean that unperformed duties which were part of the obligations of the office cannot be taken into account. It does not appear that the courts have previously looked at employees of organizations from the point of view of s. 132(1)(b)(ii). as persons who are qualified to be employed in or in connection with the industry of the relevant organization. I do not see any reason why this approach should not be taken. tt is true that rule 5(5) does not make mention of any qualification as a prerequisite for membership. It is also true that, on the - 30 - evidence, both Mr. Smith and Ms. Fitton would he qualified to obtain employment in a numper of the classifications referred to un rule 5, within the Australian Public Service or the instrumentalities named. To be ""qualified",., one need onlv possess the necessary skill or qualification to work in a particular industry. See Qwens ev. Australian Building Constructions Emplovees and Builders Labourers Federation (1978) 46 F.L.R. 16, and Turner v. Australasian Coal and Shale Emplovees Federation (1984) 55 A.L.R. 635. A rule of an organization might be expressed so as to give the right to membership to all of the emplovees of the organization, without reference to their qualifications. To the extent to which any employees miaht lack the qualifications to be employed in or in connection with the relevant industry, such a rule would have to be read down, so as to avoid a contravention of s. 140(1)(a). Aside from this, however, 1n an organization the majority of members of which require only basic aqualifications for their employment, such a rule appears to be valid. I am therefore of the view that, if Mr. Smith and Ms. Fitton were employees of the Association. as organizers, they were eligible to be members of the Association. The third category referred to in s. 132(1)(b) of the Act, relied on as giving eligibility for membership to Mr. Smith and Ms. Fitton, was employees in connection with the relevant industry. In Re Election for Office in Professional Radio Employees Institute of Australasia (1961) 3 F.L.R. 151. Joske Jd. held that a person who purported to occupy the position of general secretary - treasurer of an organization was employed in connection with the industry in which the members of the - 31 - organization were employed, within the meaning of s. 144 of the Act. In Rounsevell v. Mitchell (1968) 11 F.L.R. 414, at pages 429-430. this view was rejected. The issue in that case was whether an industrial officer, emploved by the Australian Workers' Union, was employed in connection with the industries listed in the conditions of eligibility for membership of that organization, or any of them. The view taken by the court was that an industrial officer was employed in another industry or calling, completely different from the industries or callings in the eligibility rule. In Egan v. Harradine (1975) 25 F.L.R. 336, at pages 351-353, Joske J. conducted a detailed comparison of the two approaches, and sought to resurrect the earlier view. The other two members of the Australian Industrial Court did not express a view on the question. None of these cases is binding on me. The position has since become more complicated, because of two decisions of the High Court of Australia, with reference to the rules of the Australian Workers' Union. The first of these cases was R. v. Moore; Ex parte Australian Workers' Union (1976) 11 A.L.R. 449, aun which 1t was held that employees of contractors, providing catering and accomodation services to employees of iron ore mining companies, were not employed in or in connection with metalliferous mining. In the second case. the High Court held that employees of construction companies, engaged an building structures for mining companies at and near mine sites, were employed in connection with metalliferous mining: R. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 C.L.R. 470. The determination whether a person, not engaged in an industry, is employed in connection with that industry is obviously difficult. It is all the more ~ 32 - difficult, in the case of an employee of an organization, the rules of which define eligibility for membership by reference to callings of employers. as distinct from callings of employees. In the present case, the bulk of the members of the Association are deemed to be employed in an industry, by the provision which is now s. 4(7) of the Act. (A similar provision was formerly found in s. 4 of the Public Service Arbitration Act 1920). The concept of a person employed in connection with a deemed industry is a difficult one as well. I am not prepared to hold in this case that Ms. Fitton and Mr. Smith. as organizers, were employed in connection with any relevant industry for the purposes of s. 132(1)(b). I prefer the view taken in Rounsevell v. Mitchell (above) to that asserted by Joske J. It was conceded that Ms. Fitton was appointed to her position as organizer by the branch committee of management, in the sense that she was engaged by the interviewing committee on behalf of that committee of management. and was emploved in the branch, over the affairs of which that committee of management had control, by virtue of rule 53(1) of the rules of the Association. The position of Mr. Smith is different. By reason of the lack of persons holding office as branch officers or branch councillors within the branch, there was no possibility of a quorum of the committee of management at the time when Mr. Smith was engaged as an organizer, or at any time between then and 3rd April 1985, when he was purportedly elected as branch secretary/treasurer. Section 171B of the Act does not appear to -~ 33 - cure the want of a quorum. The want of a quorum does not involve an invalidity in the election or appointment of the collective body concerned. It follows that Mr. Smith was not appointed an organizer by the branch committee of management in any sense that would satisfy rule 5(5) of the rules of the Association. Nor was he appointed by the federal council. Although the federal council passed a resolution granting a subsidy to the Tasmanian Branch to enable it to employ an organizer for six months, the federal council itself made no appointment. Mr. Smith's name was not even mentioned during debate on the resolution. For these reasons, Mr. Smith's application for membership, whether it was made in December 1984, or on 23rd or 24th January 1985, was not valid, because he was not at that time eligible to be a member. On ist November 1985, Mr, Smith made a further application for membership of the Association. He did so for the purpose of invoking the provisions of s. 171E(1) of the Act, which are as follows: "1L71LECL) Where a person, not being a member of the organization or a person who has been expelled from the organization but being a person who is eliqible for membership, applies to be admitted as a member of an organization and has, up to a time within 1 month before the application, acted in good faith as, and been treated by the organization as, a member, he 1s entitled to be admitted to membership and treated by the organization and its members as though he had been a member during the whole of the time when he acted as and was treated by the organization as a member and during the whole of the time from the time of his application to the time of his admission." Mr. Smith filled out an application for membership, and handed it to Ms. Turfrey, in the branch office. He paid her the sum of $30.00, which was $1.85 short of the amount required for a - 34 - subscription for one quarter. The question therefore arises whether this application satisfied all of the elements of s. L71E(1). Mr. Smith was not a member of the Association, nor was he a person who had been expelled from it. The first issue is whether he was, on lst November 1985, eligible for membership. At that time. he was purporting to hold the office of branch secretary/treasurer of the Tasmanian branch. Rule 53(2) of the rules includes among a list of officers of a branch the secretary and the treasurer. The duties of each of these officers are set out in rule 60 and rule 62 respectively. Rule 53(6) provides as follows: "(6) Notwithstanding anvthing contained in the foreqoing provisions of this Rule, a Branch may amalgamate the positions of Secretary and Treasurer and if a full-time officer is employed as Secretary the positions shall be amalgamated under the title of Secretary/Treasurer." Rule 52 requires that branch officers be elected. It may be seen that the decision whether the office of branch secretary is full-time is a decision for each branch committee of management. The rules of the Association do not require that it be so. The scheme of having full-time employed staff. supervised by honorary officers, 1s not unknown among organizations. No doubt the duties required of a branch secretary may be onerous if they had to be performed by a person acting in an honorary capacity. but many of them could be performed by employees, subject to the supervision and control of the branch secretary. It must be assumed that the branch committee of management, at some time, - 35 - decided that the branch secretary should be full time, and should therefore be a secretarv/treasurer. Rule 53(6) uses the word "employed" with reference to such a decision. For the purposes of these rules it may be possible to regard a full-time branch secretary/treasurer as an employee of the Association. In Roughan v. Coulson (1982) 3 I.R. 393, the Full Court considered a decision of a branch committee of management to reduce the number of organizers within its branch. The orqanizers had been elected to their positions, and, by virtue of those positions, were members of the committee of management. It was held that the rules of the organization permitted the abolition of the positions of oraqanizers, notwithstanding the provisions of s. 133(1)(f) of the Act. The orqanization was no longer bound to pay the organizers their salaries and other entitlements. but the persons who held those positions were entitled to serve out their terms on the committee of management. At p. 397, St. John and Northrop JJ. drew attention toa rule which permitted a branch to employ a particular officer in a full-time organizing capacity, emphasizing the word "employ". Their Honours then said: "It appears to us that the true intention of the rules is that the elected organizer is hoth a representative of the members on the committee of Management and, in addition thereto, may be employed by the committee under a contract of employment." The same kind of separation of the duties of office from the employment of the officer appears to be present in the rules of the Association. - 36 - In contrast. in Re Brzycki; Ex parte Royal Australian Nurses Federation South Australian Branch (1984) 2 F.C.R. 546, Keely J. held that a full-time elected secretary of an association of employees, registered under South Australian law, was not employed by that association. To some extent. the case turned on the construction of particular rules. In addition, Keelv J. had already decided it on another ground, and recognized (at page 549) that he did not need to decide the issue of employment. Ido not regard that case as authority for the proposition that an elected official can never be emploved. Roughan v. Coulson (above) is inconsistent with that proposition. and I am bound by that Full Court decision. From 3rd April 1985 onwards, Mr. Smith was, therefore, an employee of the Association. The fact that he did not validly hold the office, because he was not previously a member, does not matter. He performed the duties, and was paid the salary. He was appointed by the branch committee of management in the sense that he occupied a paid position created by it, in a branch over the affairs of which it had control. On Ist November 1985, he was therefore eligible for membership under rule 5(5). There cannot be any doubt that the duties of a branch secretary carried with them the degree of responsibility necessary to make the person performing them an "officer" within s. 132 of the Act. The next question is whether Mr. Smith made a valid application for membership on 1st November 1985. This depends upon whether it was necessary for him to pay the amount of a subscription, for such application to be valid. Rule 7 does not -~ 37 - require every applicant to pay a subscription; evidence that the subscription will be paid 1s sufficient. If a member is already financial, and 1s seeking to make an application to perfect his or her membership under s. 171E, he or she should not be required to make a further payment; the question is whether the application satisfies the section, not the rule. Mr. Smith aave evidence that he had paid subscriptions throughout his period of purported membership. He was cross-examined to the effect that he had not paid a quarterly subscription for the quarter beginning on ist November 1985. In fact, under rule 41(2)(a), if subscriptions are paid quarterly. the relevant due date was Ilst October 1985. No evidence was produced that Mr. Smith was in arrears at Ist November. In the normal course, he would have paid until 31st December. In the circumstances. I am satisfied that Mr. Smith validly applied for membership on lst November 1985. Section 171E(1) operates to entitle Mr. smith not onlv to be admitted to membership, but to be treated as though he has been a member during the whole of the time when he acted as, and was treated as, amember. The sub-section operates of its own force, irrespective of whether an application pursuant to sub-section (2) is made. The discontinuance of Mr. Smith's application pursuant to s. 171E(2) is, therefore, irrelevant to the retrospective validation of his membership. The validity of Ms. Ransley's membership turns. on considerations different from those applicable to Mr. Smith and Ms. Fitton. Rule 5 of the Association's rules includes specific eres - 38 - reference to any temporary employee of the Public Service of the Commonwealth, and to typists of various kinds, among the persons eligible to be members of the Association. Ms. Ransley was engaged as a temporary typist with the Department of Defence on 9th September 1985, when she made her application for membership. Her written contract of employment for one week from that date is in evidence. On the face of it, therefore, she falls within the conditions of eligibility for membership of the Association. It was arqued that rule 5 should be construed so as not to apply to employees whose employment was of such a transitory nature as that of Ms. Ransley. This argument even went so far as to suggest that rules which purported to provide for the membership of "temporary" employees would fail to satisfy s. 132 of the Act, and therefore be in contravention of s. 140(1)(a). Nothing in s. 132, however, or in the definition of "employee" in s. 4(1), provides any indication that the period of employment of a person is a relevant consideration. It would not be easy to determine whether, in any given case, employment was of such a short duration as to make the person concerned something other than an employee in the ordinary sense of that word. The justification for the argument was said to be the protection of organizations from persons such as Ms. Ransley, who join with no real intention of being employed in the relevant industry. It might be open to an organization to frame a rule which excludes such persons from membership, although s. 144 of the Act may still give such persons entitlements to membership, notwithstanding any such rule. It is sufficient in the present case to point to the fact that the Association has not adopted ~ 39 - any such rule. On its face, rule 5 includes persons whose employment in the Australian Public Service is of short duration, as well as those who are employed for longer periods. Section 82 of the Public Service Act 1922 makes provision for the employment of persons in a temporary capacity; it was no doubt under that provision that Ms. Ransley was employed. The validity of Ms. Ransley's nomination for the office of branch secretary/treasurer depends upon whether she became a member before that nomination was lodged on 1lth September 1985. It is therefore necessary to construe rule 7, to ascertain the time at which an applicant for membership becomes a member. Rule 7 does not make specific provision on that subject. Argument focussed on what constituted being "enrolled as a member" and on whether membership was effective before such enrolment. If it were necessary for a person's name to appear on a computer print-out from the federal office of the Association. before that person could be regarded as a member, then Ms. Ransley was not a member before her nomination was lodged. If enrolment consisted merely of placing the application card in a compilation of such cards held in the branch, then it is not clear that this was done before llth September 1985 in relation to Ms. Ransley. On the other hand, if the copying of details from the application card onto the pro forma, in preparation for sending those details to the federal office, constituted enrolment, then on the evidence this was done before llth September. These very questions highlight the problem of treating enrolment as a pre-condition of membership. The question whether a person has become a member of an organization should not depend upon such questions as whether ert ed - 40 - office employees have entered the person's name in a computer, or whether they have chosen to print out the computer records. unless the rule in question compels such construction. Compare the approach taken in Re Australian Glassworkers Union (1973) 22 F.L.R. 16, at pages 27-28. In the present case, rule 7 does not compel such a conclusion. It requires several steps to be taken in relation to an application, namely that the application be made to the appropriate branch secretary, that the branch secretary or his delegate be satisfied as to the eligibility of the applicant. and that the prescribed subscription be paid or evidence that it will be paid be produced. It then provides that, when these steps have been taken, the applicant "Shall be enrolled as a member". In my view, such enrolment is an administrative step, to be taken for the purposes of maintaining records, after the applicant has become a member. Membership 1s completed when the earlier steps are completed. This is consistent with the practices of the branch with respect to membership applications, and with the evidence of Mr. Wright. the federal secretary of the Association, that not all branches make use of the federal office computer for their membership records. Ms. Ransley therefore became a member of the Association upon the presentation of her application, the exercise by Ms. Turfrey of her delegated authority to determine her eligibility, and her payment of one quarter's subscription. These events all occurred on 9th September 1985. There was also a suggestion raised that Ms. Ransley's application for membership was not valid. because she only ere - 41 - desired to become a member in order to stand for office. It was alleged that she was motivated to stand for office by a desire to assist in a takeover of the Association which is said to be contemplated by the A.C.0.A. Allegations were made of an Australia-wide conspiracy to gain control of offices within the Association, to cause it to agree to an amalgamation with the A.C.0.A. I make no finding on whether these allegations are correct or not. What 1s clear is that the motive of a person in making an application for membership of the Association 1s not relevant. The rules of the Association do not require that a person be a member for any specified period before being eligible to nominate for any office. It is therefore possible for any person eligible to join to make an application for membership, with a view to standing for office immediately he or she becomes amember. The fact that such a new member may seek membership, and office, for the purpose of changing the policy of the Association cannot be a reason for denying the validity of membership. I therefore reach the following conclusions: 1. Mr. Smith was not eligible for membership when he originally applied for membership of the Association. He was so eligible when he made a further application on lst November 1985. He is therefore to be treated as having become a member, and as having been eligible to be nominated for the office of branch secretary/treasurer. No irregularity can now be found to have occurred in the acceptance by the returning officer of his nomination. 2. Ms. Fitton was eligible to be a member and became a member of Sr) - 42 - the Association on or about 15th August 1985. She was, therefore, eligible to be nominated for the position of branch secretary/treasurer, and no irregularity resulted from the acceptance of her nomination. 3. Ms. Ransley was eliquble for membership, and did become a member of the Association on 9th September 1985. She was therefore eligible to be nominated for the office of branch secretary/treasurer on lith September 1985, when her nomination was lodged. The rejection of her nomination by the returning officer amounted to an irreqularity. 4. The irreqularity affected the result of the election, in that voters were deprived of the opportunity to vote for Ms. Ransley. 5. An order should be made declaring the ballot void, with a further order for the conduct of a new ballot. I will hear counsel as to the terms in which orders should be made. I will also hear counsel as to the terms of any interim order as to the occupation of the position of branch secretary/treasurer, pending any further ballot. The allegations that the funds and resources of the Union, or the positions of Ms. Fitton and Mr. Smith, were misused for the purposes of the election were not pursued, and it is unnecessary to make any finding upon them. If Mr. Smith did make improper use of his position, or of the resources of the branch office, in campaigning for his re-election, the result of the election was not thereby affected, as he was the losing candidate in any event. Ms. Fitton gave evidence denying the allegations "se a - 43 - which were made against her. I accept that evidence. In the light of the finding that Ms. Ransley became a member of the Association on 9th September 1985, it is unnecessary to pursue matter number T2 of 1985. Section 144 of the Act is available to a person who has failed to be admitted to membership of an organization by complying with the procedures laid down in the rules of that organization. It presupposes an entitlement to membership of the organization, existing at the date when the application is made to the court. See Turner v. Australasian Coal and Shale Employees Federation (above). If she had not succeeded in obtaining membership in the ordinary way on 9th September 1985, Ms. Ransley may have had difficulty in satisfying the Court as to her entitlement to membership at the date when matter number T2 of 1985 was commenced. As no irregularity has been found to exist in matter number T4 of 1985, the proper course is simply to terminate the inquiry the subject of that matter. As a result of the concession that Ms. Fitton was properly appointed an orqanizer, and the conclusion that she became a member on or about 15th August 1985, it is unnecessary to make any order in matter number T6 of 1985. That matter will also be dismissed. As I have already said, leave to discontinue matter number T7 of 1985 has already been granted. I certify that this and the 42. preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr, Justice G roy Associate Dated: oliz [8s . bet eit mal ada!